Archive for the ‘mental incapacity’ tag

When someone becomes brain injured due to an accident or a medical condition, they sometimes need assistance in making decisions. These decisions can relate to the conduct of a personal injury claim and also the management of their own financial affairs. They will probably have bills to pay and if they have received a settlement after a claim, monies to invest and manage. If they are lucky they will have a partner, relation or close friend that will be able to help them.

Whether someone suffers from mental incapacity such that they need assistance is an issue that is ultimately decided by a medical practitioner. If someone is said to lack mental capacity and has not made either an Enduring Power of Attorney or a Lasting Power of Attorney, then the family or the next of kin should be looking to part of the court system known as the Court of Protection to manage the funds.

Unfortunately, the procedure is unwieldy, longwinded and expensive. It does not discriminate between small funds and large funds in relation to the procedure.

It is necessary for either a professional person or a family friend to be appointed ‘deputy’ for the person concerned. The deputy then takes responsibility for managing the funds subject to the supervision of the Court of Protection. The deputy is required to make an annual return showing income and expenditure. The deputy is then able to manage the investment of funds subject to the approval of the Court of Protection.

My firm is happy to deal with Court of Protection matters for our clients. Either we advise deputies or we are appointed professional deputies ourselves. If you go on to the Court of Protection or ‘Office of the Public Guardian’ (the administrative adjunct to the Court of Protection) web site and look at the forms required for the various things you will need to do as deputy, you will see the complexity and detail required for sometimes quite minor amounts of money. If you look a bit further you will also see that every time you make an application to the Court of Protection in most cases there is a fee payable of £400. This has to be paid from the protected person’s own funds. A supervision fee is also charged which is payable annually. In addition the Court often requires the deputy to take out a fidelity bond to cover the risks of the fund being mismanaged or dishonestly depleted.

When you look at the size of the fees and charges and take into account that some of the estates are relatively small, both the procedures and the amounts charged are definitely disproportionate.

Delays also occur as any funds have to be paid into a separate body, the Court Funds Office, which has another layer of administration and seemingly little direct supervision by and communication with the Court of Protection.

I am dealing with a case as professional deputy where settlement was reached in May 2010. Not unreasonably, the Client wishes to purchase a property that is more suitable for him to live in than his current home which is rented from a Housing Association. We made a prompt application for the appointment of a deputy and followed this up swiftly with an application for funds to be released in order to fund the purchase of the property. At the time of writing, some four months later the funds still remain in the Court Funds Office despite all the forms being dealt with and a great deal of time being spent on what is essentially administrative work.

Surely there is a better way of doing things? I should be interested to know if others are experiencing the same problems and frustrations in setting up a regime designed to protect a person’s finances yet at the same time enabling them to have access to the those finances in order to improve the quality of their life?